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Diane Johantgen v. Brandywine Senior Care Center

October 31, 2011

DIANE JOHANTGEN, PETITIONER-RESPONDENT,
v.
BRANDYWINE SENIOR CARE CENTER, RESPONDENT-APPELLANT.



On appeal from the New Jersey Department of Labor and Workforce Development, Division of Workers' Compensation, Claim Petition No. 2004-4391.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically argued February 3, 2011

Before Judges Fuentes, Gilroy and Ashrafi.

Respondent Brandywine Senior Care Center owns and operates a long-term care nursing home. Once per week petitioner Diane Johantgen provided hairstyling and other personal grooming services to the residents of the nursing home. In December 2003, petitioner fell from a chair while hanging Christmas decorations in the salon area where she worked.

Petitioner filed a claim for workers' compensation benefits. Respondent contested the claim on the ground that petitioner was an independent contractor, not an employee. The judge of compensation ruled in favor of petitioner finding that she was an employee of respondent who suffered a compensable injury in a work-related accident. Respondent appeals, arguing the judge of compensation erred as a matter of law in finding petitioner eligible for compensation. We affirm.

I

The relevant facts are not disputed. Petitioner fell from a chair and fractured her wrist while hanging Christmas decorations in the area of the nursing home designated by respondent for petitioner to provide hairstyling services to the residents. Petitioner had worked as a licensed hairdresser at this nursing home since 1992. She reported once a week starting at about 9:30 in the morning and continuing throughout the day until completing all of the scheduled residents.

The services petitioner provided to the residents of Brandywine included haircuts, hair styling, pedicures, and manicures. She did this in a room next to the nurse's station, off the wing where the patients' rooms are located. The nursing home called it the beauty salon. According to petitioner, the room had a small sign outside with Braille, "[l]ike [the ones] you find on the room numbers," to identify its function. Otherwise, the "salon" was the type of room "[one] would definitely think [] was part of the facility." Petitioner's name appeared only on the inside of the room, next to the frame displaying petitioner's hairdresser license.

In addition to the space for the beauty salon, respondent provided the chairs, hairdryers, a sink, and a cabinet for supplies. Petitioner furnished some of her own supplies, including "permanent waves, hair dye, [and] things for sanitation," because these supplies are only sold to licensed hairdressers. She provided her own scissors, because they are "personal" and "[e]ach hairdresser or barber has their own"; she took the scissors home after completing her shift. Petitioner used medicated shampoos provided by the nursing staff when required; otherwise, she used the shampoo she purchased from cosmetology suppliers. She "understood" this cost was "part of the percentage that [she] received for doing things."

Petitioner was the only hairdresser in the salon on the days she worked. However, residents' family members were permitted to work in the salon too. Residents scheduled their appointments with petitioner directly through the nursing home. The facility transported the residents to petitioner in the salon. When necessary, she also served residents in their rooms.

The facility set the fee schedule for petitioner's services. At the end of the day, petitioner would submit a list of the residents she had served to the billing office. The list included the name of the residents, the service performed, and the price for that service, as set by the facility. Petitioner would then prepare a billing statement, from which respondent would deduct 15% of the receipts, and pay petitioner the 85% balance.

Petitioner had a similar arrangement at Liberty Royal Care Center. She reported once per week, was provided a room to do the work, and was paid 100% of the fees paid by the residents for her services. In addition to the fee arrangement, another difference between Liberty and respondent was the way in which the residents accessed petitioner's services. At Liberty, the residents did not make appointments; petitioner attended "[w]hoever showed up the day that [she] was there, that's who got it done and then [she] would go." The only other work petitioner did was washing hair on Saturdays at a friend's salon. She started doing this towards the end of her twelve-year association with respondent.

According to petitioner, respondent "always treated [her] as an employee." Respondent required petitioner to receive all of the immunizations required of other employees, including tuberculosis testing every two years, and a hepatitis B shot; she had to provide respondent with proof that she had seen a physician for a physical. And she was never asked to submit a certificate "of workmen's compensation" insurance coverage. She was only required to have personal liability insurance, "as nurses have to provide." The only indication of her non-employee status was in the manner respondent reported her income to the Internal Revenue ...


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